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78 Md. L. Rev. Endnotes 1 (2018-2019)

handle is hein.journals/endnot78 and id is 1 raw text is: 










  MARYLAND LAW REVIEW ONLINE


VOLUME 78                                                          2018
                 MEMBER, NATIONAL COUNCIL OF LAW REVIEWS


                      THE   SECURITY COURT

                            MATT  STEILEN*

ABSTRACT

       The Supreme  Court is concerned not only with the limits of our
     government's power to protect us, but also with how it protects us.
     Government  can protect us by passing laws that grant powers to
     its agencies or by conferring discretion on the officers in those
     agencies. Security by law is preferable to the extent that it pro-
     motes rule of law  values-certainty, predictability, uniformity,
     and so on-but,  security by discretion is preferable to the extent
     that it gives government the room  it needs to meet threats in
     whatever form they present themselves. Drawing  a line between
     security by law and security by discretion is an important and
     long-standing jurisprudence of the United States Supreme Court,
     although it is rarely acknowledged as such and entangled with the
     more general law of separation of powers. In some separation of
     powers cases, however, where both political branches have a col-
     orable textual and historical claim to exercise authority, it is the
     Court's concern with preserving the rule of law or making room
     for necessary discretion that tilts the balance in favor of one
     branch or another. This Essay begins by examining an important
     nineteenth-century case, In re Neagle, and shows how  Justices
     cleaved around the distinction between security by law and secu-


0 2018 Matt Steilen.
    * University at Buffalo School of Law. Thanks to Jonathan Manes and Jack Schlegel. This
Essay is based on remarks given at Chautauqua Institution in July 2017, during a week on the
United States Supreme Court. I thank Greg Peterson and Clem Reiss for the invitation.


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